1. 2-20-19 NATIONAL CHERRY PIE DAY
PROPERTY B SLIDES
NATIONAL CHERRY PIE DAY

2. Comments & Best Answers forthcoming as we Cover Underlying Material
Music to Accompany Javins: Simon & Garfunkel, Greatest Hits (1972) featuring “Bridge Over Troubled Water” (1970)
New on Course Page
Banks of Old Hour- Long Exam Qs (QI, QIII, QIV)
Comments & Best Answers forthcoming as we Cover Underlying Material
Next Few DF Sessions:
Current: Rev Prob 2E (Lauren)
9:40 Here
9:40 Here
Then: Rev Prob 2G
9:40 Here (Brendan)
9:40 Here (Lauren)

3. MONDAY (2/25) Review Problem 2L(b)(S64-65)
OLYMPIC: Anti-Discrimination Claim (Monday)
Evidence Supporting/Refuting that S Rejected B b/c he believed B was Muslim or Arab
SEQUOIA: Reasonableness Claim (Monday)
S has Legit. Interest in Whether B Can Afford to Pay Rent
Why Might Rejection Be Unreasonable Anyway?
What Evidence Here is Relevant?
What Additional Facts Might be Relevant?

4. Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law
The Importance of Context
Ldld’s Right to Exclude (& Legitimate Interests of Tnts)
Habitability & Related Issues
A. Overview
B. Quiet Enjoyment/Constructive Eviction
C. Implied Warranty of Habitability & Related Doctrines
D. Problems

5. Habitability = Duties of LDLD re Physical Condition/Usability of Premises (Recap)
Traditional View
LDLD Guarantees TNT has Legal Access to Premises
No Duties re Physical Condition Unless Specifically Stated in Lease
Based in Agrarian View of Leases

6. Habitability = Duties of LDLD re Physical Condition/Usability of Premises
Changes Over Time
A. Social Changes
Most Leases for Residence or Business, so Primary Value of Lease Usually is Building, Not Land
TNTs less competent to do maintenance
B. Legal Changes

7. Habitability = Duties of LDLD re Physical Condition/Usability of Premises
Changes Over Time
A. Social Changes
B. Legal Changes
Courts increasingly protect tenants
a. Quiet Enjoyment/Constr. Eviction (early 20th C )
Implied Warranty of Habitability (IWH) & related doctrines (1960s )
Note Barash & Gurian simultaneous w Javins
Most States Adopt Detailed LT Statutes (at least for Residential)

8. For Each Cause of Action Discussed, Responsible For Sense of …
Habitability = Duties of LDLD re Physical Condition/Usability of Premises
For Each Cause of Action Discussed, Responsible For Sense of …
Nature & Extent of LDLD Duties
Remedies Available to TNT
Waivability

9. Possible Extension of Doctrines Addressing Habitability
Knudsen & DQ2.19 (EVERGLADES Friday):
If Ldld Rents Unit Next to TNT1 to “Undesirable” TNT2, Is TNT1 Entitled to Terminate Lease or Receive Other Remedy…
Under Constructive Eviction Theory?
Under IWH?

10. Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law
The Importance of Context
Ldld’s Right to Exclude (& Legitimate Interests of Tnts)
Habitability & Related Issues
A. Overview
B. Quiet Enjoyment/Constructive Eviction
C. Implied Warranty of Habitability & Related Doctrines
D. Problems

11. Overview of Quiet Enjoyment/ Constructive Eviction
Implied Covenant of Quiet Enjoyment
Generally Implied in Leases
Traditionally not about “quiet” or “enjoyment” in physical or literal sense.
Protected T’s legal right to possess from acts authorized by L
e.g., L evicts or excludes prior to end of lease
e.g., L purports to rent or sell to someone else prior to end of lease
Over Time, Legal Q Develops: What other kinds of protections are implied in the Covenant of QE?

12. Three Relevant Doctrines
Direct Physical Exclusion
Non-Physical or Indirect Exclusion
Whole Premises
[Actual Eviction]
(2) Constructive Eviction
Part of Premises
(1) Partial Actual Eviction
(3) Partial Constructive Eviction
(Some States)
Exam Prep Note: Claims Overlap & All 3 Can Arise from Same Facts (See Review Problem 2K & 2016 Exam Q 4(a))

13. Overview of Quiet Enjoyment/ Constructive Eviction
Barash (P602)
2 Penn Plaza: Office Building
No A/C Nights & Weekends
BUT Lease Says This Will Be True

14. Overview of Quiet Enjoyment/ Constructive Eviction
Gurian (P605)
301 E. 69th St. (Apt. 18E)
Problems on Terrace (“Prime Factor” in Entering Lease)
A/C  Green Fluid/Stream of Water (cf. Nickelodeon)
Incinerator  Ash Particles

15. (1) Partial Actual Eviction: Nature of Claim
1. L physically uses or authorizes use of part of leased premises
a. some states: can be any part
some states: needs to be substantial
2. Remedy
a. Traditional: if not de minimis, complete abatement of rent
b. Some States/Trend: Apportion: pro rata decrease in rent

16. (1)Partial Actual Eviction: In Cases
Why Not Met in Barash?
No physical expulsion/exclusion of T
No seizure or actual use by L
Remedy for unpleasant odors etc. =
Constructive Eviction

17. (1)Partial Actual Eviction: In Cases
Gurian doesn’t rely on this cause of action; reads Barash to say claim is very ltd.
Casebook Asks If Too Cautious?
Argument that Fits Claim?
Excluded from Terrace by Problems L Could Control
Possible Arguments Against?
Scope of Problem Unclear; Really “Excluded” from Terrace?
Bottom Line: Reqmt of Physical Expulsion or Ldld Use of Space Means “Partial Actual” has Limited Value

18. (2) Constructive Eviction: Nature of Claim
L acts that don’t literally deprive T of physical possession but are essentially equivalent to eviction
Test in Barash (Very Bottom P603):
“L’s wrongful act
substantially & materially
deprives the T of the beneficial use & enjoyment of the premises”

19. (2) Constructive Eviction: Nature of Claim
T’s REMEDY:
Terminate Lease (Musy Leave + Stop Paying Rent)
Gurian: Must Act w Reasonable Promptness (Can Give LDLD Some Time to Address)
EXAMPLES
Physical Blocking of Access
L Acts That Effectively Exclude Reasonable T (cf. Knudsen)
L’s Failure to Maintain  Effectively Excludes Reasonable T

20. (2) Constructive Eviction: Nature of Claim
EXAMPLES
L Acts That Effectively Exclude Reasonable T (cf. Knudsen)
L’s Failure to Maintain  Effectively Excludes Reasonable T
Good 2017 Eggshell Skull Q
Torts
Look at D’s Conduct to Determine Liability.
If Liable, Take Ps as You Find Them
Here: Liability Only if Harm Sufficient to Drive Out Reas. T
Special Case: Disability Accommodation (3604(f)): NOTIO

21. (2) Constructive Eviction: In Cases
Not Met in Barash: Didn’t Leave
Why Require T to Leave? (Problems with: “An ordinary T would have left but I am tough and hung in there”?)
Parallel to Ordinary Eviction
Easy Way to Show Really Uninhabitable; Eliminates Line-Drawing Problems

22. (2) Constructive Eviction: In Cases
Gurian: Not Met Because:
Have to Leave Entire Apt for This Claim
Waited Too Long (17 Months)
Can Take Time to Wait for L to Act
Can be Flexible Given Housing Mkt
BUT no evidence that they tried to get other apt earlier

23. (3) PARTIAL Constructive Eviction: Nature of Claim
L acts that seriously interfere with T’s use that are essentially equivalent to eviction from part of the premises
T just has to leave affected area, not whole premises
Not recognized by all states
T’s REMEDY:
Some States full rent abatement (e.g. Gurian)
Some States pro-rated

24. (3) PARTIAL Constructive Eviction: In Cases
Gurian:
Easy case if you allow these claims; terrace unusable and abandoned immediately
Nice Lawyerly Analysis Defending Existence of Claim (Read Carefully; Let Me Know if Qs)
Barash Raises Interesting Qs: Should Doctrine Apply Where:
A/C Unavailable to Some Rooms in Office Suite
Usable v. Unusable Divided by Time, Not Space

25. (3) PARTIAL Constructive Eviction: Justifications
Parallel to Actual Partial Eviction
No reason to limit remedy to cases where whole apt harmed
Concern about shortages of urban residential housing & bargaining power (though housing in Gurian pretty upscale)
Seems harsh to require (v. permit) T to look for new housing if only partly uninhabitable

26. (3) PARTIAL Constructive Eviction: Justifications
Parallel to Actual Partial Eviction
No reason to limit remedy to cases where whole apt harmed
Concern about shortages of urban residential housing & bargaining power (though housing in Gurian pretty upscale)
Seems harsh to require (v. permit) T to look for new housing if only partly uninhabitable
BUT: Big line-drawing problems arise if T doesn’t leave apt entirely
BUT: Claim focused on possession may be wrong way to handle maintenance issues

27. Quiet Enjoyment Claims (ALL THREE): Actionable Interference
Must Be Attributable To L (See Note 4 P609-10)
Hard Qs Involve Actions of Other Tenants
Trend: L Responsible if has Right to Control T’s Acts
Can Discuss
Whether Landlord Likely to Be Able to Control
Whether Seems Type of Problem Properly Attributable to Landlord
Must Be “Substantial” for CONSTR. EV.(See Note 3 P609)
Relatively Meaningless Standard w/o Examples or Explanation
DQ2.13 designed to try to help you think about how to quantify
Both These Issues Raised in 2016 QIV(a) (DF 3/6-3/8)

28. ALL: DQ2.13: “Substantial” Interference (Hard Qs/Easy Qs)
Another T in Residential Bldg Making Noise at Night:
Clearly Insubstantial IF
Clearly Substantial IF
Hard to Say IF
c) The Roof Leaks When It Rains

29. 3 Relevant Doctrines: QUESTIONS?
Direct Physical Exclusion
Non-Physical or Indirect Exclusion
Whole Premises
[Actual Eviction]
(2) Constructive Eviction
Part of Premises
(1) Partial Actual Eviction
(3) Partial Constructive Eviction
(Some States)
Exam Prep Note: Claims Overlap & All 3 Can Arise from Same Facts (See Review Problem 2K & 2016 Exam Q 4(a))

30. REVIEW PROBLEM 2F ACADIA BADLANDS for Affirmance for Reversal
Acadia Sunrise
NORBECK PASS

31. Review Problem 2F(S45-46) Opinion/Dissent: General Background
State Supreme Court in Prior Case:
Where Commercial Lease Required Landlord’s Consent to Transfer, the Landlord could not withhold consent Unreasonably;
Did not rule on whether T could expressly waive this reasonableness req’mt
Lease Here: “Tenant may not transfer its interest in this lease without permission of the Landlord, which permission maybe withheld for any reason at all.”
L refuses T attempt to transfer lease rights to PP; “no problem” w financial credentials BUT:
CEO of PP was “outspoken public advocate” of political positions L “sharply disagreed with”
5 years earlier, had denied same lease to PP

32. Review Problem 2F(S45-46) Opinion/Dissent: Lower Courts
Trial Ct (in favor of Liz).
Waiver of “reasonableness” valid if comm’l lease/arm’s length agmt.
Anyway, L’s refusal “reasonable” (even in comm’l lease):
No duty to accept a transfer to already-rejected tenant
Ldld should have right to exercise strongly-held political beliefs.
Intermediate Ct App (Reversing).
“Reasonableness” implied in all leases and non-waivable
“Reasonableness” in comm’l leases ltd to concerns related to Ldld’s economic interests.

33. Review Problem 2F(S45-46) Opinion/Dissent Arguments
Is Reasonableness Req’mt Waivable in Comm’l Lease?
BADLANDS Arguments: Yes if Arm’s Length Agreement
ACADIA Arguments: Never
STRONGEST POSITION?